Friday, February 1, 2013

Criminal Background Checks? Not So Fast!

Last April, the EEOC issued a new policy guidance regarding businesses’ use of criminal background checks in hiring. The EEOC doesn’t have statutory authority to issue binding rules, but their policy guidances perform a similar function. Policy guidances tell businesses what practices the EEOC considers suspect under Title VII and, therefore, what practices will trigger a costly EEOC investigation. Thus, businesses are well advised to adhere to the guidances.

The purpose of the EEOC’s criminal-background-check guidance is to discourage businesses from refusing to hire ex-offenders. However laudable and necessary it may be to reduce unemployment among this cohort, ex-offenders are not a protected class under Title VII, so the EEOC doesn’t have express statutory authority to investigate and charge businesses for discriminating against ex-offenders. The EEOC gets around this impediment by invoking disparate-impact theory. The reasoning is as follows: Blacks and Hispanics are more likely to be incarcerated than whites. Therefore, even a facially neutral policy against hiring ex-offenders will screen out more blacks and Hispanics than whites. Consequently, the agency argues, this may constitute evidence of unlawful racial discrimination in violation of Title VII, giving the EEOC the authority to investigate and sue offending employers.

Do you think this issue could be raised regarding criminal background checks for guns, particularly if the background checks become, as most liberals want, universal, when ever a weapon is transferred between two people?